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Lessons from Netflix’s 5 second stare rule

Craft sexual harassment policies using common sense

Over the past year, #MeToo has been widely adopted by Twitter users. But the phenomenon is more than a social media fad. The hashtag has become a worldwide movement against sexual harassment and assault, particularly gaining resonance in the workplace.

History will mark out Harvey Weinstein as the catalyst for #MeToo, with scores of actresses having documented their personal experiences of his alleged abuse.

The nefarious activities of powerful individuals such as Weinstein created a world where #MeToo highlights the ubiquitous nature of sexual harassment, as well as the need for previously silent voices to be heard.

Many companies are no longer aware of the risks of being lenient, taking strong proactive measures to prevent the problem arising in the first place and taking swift action if it does. This is best demonstrated by Netflix, which implemented a new sexual harassment policy for its staff. This included how long they can stare at colleagues.

The Netflix staring policy if you stare at someone for more than five seconds, it is deemed creepy is well-intentioned, although a little excessive since it is almost impossible to prove legally.

Another Netflix policy is that you can’t ask co-workers for their phone numbers. This may also be a little draconian since the request might be an integral part of a working group or team.

The issue with both policies boils down to a question of context and degree. Staring into space, i.e. daydreaming, when someone else is within your line of vision, cannot be regarded as harassment, whereas a permanent fixed stare may well be. Equally, a prolonged stare or habitual staring could be regarded as intimidation and therefore, bullying behaviour.

Likewise, asking a colleague for their mobile number might be harassment, particularly if the request is repeatedly made and refused. But a causal ?what’s your number” is requested thousands of times a day by co-workers without any intent of harassment.

Going to an HR manager and saying a man or woman once asked for your number is unlikely to be seen as a gross violation.

Both examples are far removed from the outrageous behaviour alleged against Weinstein. The corporate response in how to prevent such behaviour, or something which might precede it, and how to respond needs to be both proportionate and pragmatic.

An overreaction to events or virtue signalling serves neither the interests of a company or its employees. Netflix’s new anti-harassment policies have, reportedly, seriously disrupted production on its House of Cards show, for example: actors spending many hours on set can no longer look at each other, except transiently.

The unashamed and honest nature of the #MeToo hashtag has significantly shaped the national discourse and rightly so. It is therefore now more crucial than ever that companies adopt and maintain compliant sexual harassment policies. But they also need to be feasible and sensible in order to work.

On any reasonable view, for looking at someone or requesting their number to constitute anything approaching sexual harassment or assault, the behaviour would need to be sustained, serious, or both.

Can we really envisage a future where a five second look at someone’s face would end up in dismissal or an employment tribunal?

When applying the law and deciding what is right for each business, every employee should be aware of and supplied with a harassment-free employment policy, or if necessary, handbook. But for such policies to work in practice, they need to be reasonable and sensible in combatting behaviour that is genuinely inappropriate.

Much of that falls outside the scope of employment policies, no matter how comprehensive or well-drafted. Instead, it is the product of courtesy, respect and a good deal of common sense.

Hina Belitz is a specialist employment lawyer at national law firm Excello Law.


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